The Other Executive Privilege–and Why It Doesn't Protect Eric Holder

Some Republican leaders have made the mistake of saying that President Obama’s invocation of executive privilege over Attorney General Eric Holder is an admission that the White House has been involved in Operation Fast and Furious. The reality is that there is a form of executive privilege that a president can invoke even when he is not at all involved in a situation. But that privilege will not protect Holder, so the truth will eventually come out, and Obama will pay the price.

The reason even many Washington insiders and lawyers are unaware of this second form of privilege is that it has been clearly articulated only by the U.S. Court of Appeals for the District of Columbia Circuit, not the Supreme Court. That’s because most executive privilege fights tend to change after each election, so most battles don’t last long enough to reach the Supreme Court. But most executive privilege lawsuits are filed in D.C., so the D.C. Circuit’s decisions on this suvbject are every bit as binding as Supreme Court decisions, unless or until the Supreme Court chooses to take up this matter.

The first form of executive privilege is the presidential communication privilege, which is a constitutional separation-of-powers privilege that applies whenever the president is personally involved in a situation. The other applies when the president is not involved, though ironically only the president can invoke the privilege for officers in his administration, which is what is happening in Fast and Furious.

The best explanation of this second form of privilege comes from In re Sealed Case at the D.C. Circuit. The three-judge panel in that case consisted of two liberal judges and one brilliant conservative judge, in a unanimous decision. Judge Patricia Wald began, “The most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege.”

As a federal trial judge explained in a 1966 case in D.C., the deliberative process privilege allows government to withhold “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” It’s most frequently seen in Freedom of Information Act (FOIA) requests.

The D.C. Circuit explains that there are two elements in a claim of deliberative process privilege. The requested documents/testimony must be regarding actual deliberations within an agency (meaning debates about a proposed policy or action), and these deliberations must have occurred before the government officer in charge reached a final decision on that subject. If both elements are met, then the president can claim these discussions between his subordinates were to hash out alternatives in order to formulate good policy, and that forcing their disclosure would impair agencies’ ability to have frank and candid discussions in the future.

Wald added, “The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.”

That last part is what will prove fatal to Obama’s claim of executive privilege. Much of what Government Oversight Committee Chairman Darrell Issa wants here are documents relevant to why DOJ misinformed Congress in a letter that they had never let guns walk, why they later retracted it, and who knew what and when.

That’s where this situation starts to sound like Watergate. It’s a maxim proved true again maybe once a decade that the cover-up is worse than the crime. This is starting to smell like a cover-up.

The timeline becomes incriminating. There was a small-scale gunwalking operation during the Bush years. The low-ranking Bush DOJ official in charge of it (Operation Wide Receiver) shut it down over grave concerns. Then once Obama was sworn in and Holder took over DOJ, they restarted a massively-expanded gunwalking program. Then a federal agent died. Then a high-ranking DOJ official told Congress they knew nothing about the situation. Then Congress started digging. Then suddenly DOJ retracted its denial without explanation. Then Congress demanded documents explaining why DOJ changed stories and who’s to blame. Then Holder refused to hand them over. Then Obama invoked executive privilege to block disclosure.

This situation is becoming toxic to the White House, and at the worst possible time for Obama’s reelection chances. Americans value their Second Amendment rights and they also value honest and transparent government. This issue will soon be in court, and it will not go well for President Obama and Attorney General Holder.

Breitbart News legal contributor Ken Klukowski is on faculty at Liberty University School of Law and author of “Making Executive Privilege Work” by Cleveland State Law Review.